The proposed rule making amends provisions of 6 NYCRR Subpart 750-1 to eliminate the requirement that non-discharging Animal Feeding Operations (AFOs) with 200-299 mature dairy cows, milked or dry, obtain ECL CAFO SPDES permit coverage unless the Department designates the facility to be a CAFO. The rule making defines the different types of CAFOs (which previously were not defined in Department regulations) to clarify those facilities subject to regulation under state law. Under the rule making, non-discharging AFOs with 200-299 mature dairy cows are excluded from the definition of “Medium CAFO.” Consequently, these AFOs would not be required to obtain ECL CAFO SPDES permit coverage unless: 1) the facility requests and is granted permit coverage as a Small CAFO or 2) the facility is designated to be a Small CAFO by the Department. The proposed rule making revisions to Subpart 750-1 do not change the federal definition of a Large, Medium or Small CAFO or to limit, in any way, the scope of federal law. Instead, the proposed Subpart 750-1 changes exempt non-discharging AFOs with 200-299 mature dairy cows from the requirement to obtain an ECL CAFO SPDES permit unless designated, while clarifying that although ECL CAFO SPDES permit coverage for these facilities would be discontinued, state law is still more stringent than federal law. This is the case because unlike federal law which generally regulates discharges from point sources, state law regulates the creation of point sources even if there is not a discharge. The specific substantive revisions to 6 NYCRR Subpart 750-1 are summarized below.

Paragraph (21) of Subdivision 750-1.2 (a) is revised to define the term “CAFO” and the different categories of CAFOs for purposes of state law. The term “Large CAFO” is defined in Section 750-1.2 (a) (21) to align with the federal definition set forth in 40 CFR § 122.23 (b) (4). The term “Medium CAFO” is defined to include all AFOs with 200-699 mature dairy cows except that a non-discharging AFO with 200-299 mature dairy cows would not be classified as a CAFO unless the facility elected to seek coverage or was designated a CAFO in which case it would be considered a Small CAFO throughout permit coverage. The proposed definition of Medium CAFO remains more stringent than federal law because the universe of facilities subject to regulation is still greater under state law. Under federal law, all non-discharging AFOs are exempt from being required to obtain a permit, regardless of size. The Department’s proposed regulations, however, provide that AFOs with 300 or more mature dairy cows, milked or dry, are considered CAFOs that are required to obtain SPDES permit coverage irrespective of discharge. The rulemaking would align State law more closely to federal law for non-discharging AFOs with 200-299 mature dairy cows because these facilities would no longer required to obtain CAFO SPDES permit coverage. However, consistent with federal law, Paragraph (21) of Subdivision 750-1.2 (a) also makes explicit that the Department may designate an Animal Feeding Operation (AFO), including those AFOs between 200-299 mature dairy cows as a Small CAFO. Under the ECL, if an AFO is designated as a Small CAFO, it is a defined point source that is required to have a SPDES permit even if there is not a discharge. Furthermore, the proposed rule clarifies that the revision does not impact the Department’s existing authority to enter, inspect and collect information. The overall effect of these changes, both the definition and the exception, is to: (1) require permit coverage of all CAFOs that discharge; (2) require permit coverage for dairy CAFOs above the threshold of 300 mature dairy cows irrespective of discharge; and (3) exempt from permit coverage AFOs with 200-299 mature dairy cows, whether milked or dry, without a discharge, unless the facility elects to seek coverage or is designated as a Small CAFO.

Subdivision (c) of Section 750-1.7 has been amended to incorporate 6 NYCRR Part 621 as part of a permit application requirement for CAFOs. This change would specifically apply to those CAFOs required to obtain an ECL CAFO SPDES permit. Paragraph (4) of Subdivision 750-1.21 (b) has also been revised to clarify the Department’s authority to issue a SPDES General Permit for CAFOs that do not discharge, by deleting the word “discharge.” Subdivision 750-1.21 (b) would now explicitly authorize a general permit for discharges or potential discharges from CAFOs.

Subparts 360-4 and 360-5

The proposed rule making makes a number of substantive changes to Subpart 360-4 (Land Application and Associated Storage Facilities) and Subpart 360-5 (Composting and Other Class A Organic Waste Processing Facilities). As discussed in greater detail below, these revisions establish criteria for anaerobic digestion (AD) facilities, provide exemptions from permit and registration requirements for specified activities at farms and CAFOs, and make other changes to these Subparts to promote sound environmental practices and reduce regulatory overlap.

6 NYCRR Section 360-4.2 (a) (1), as currently in effect, states that land application facilities for animal manure and associated bedding material are exempt from the requirements of Subpart 360-4. The proposed rule defines the term “bedding material” for purposes of the exemption to clarify that this exemption applies to common bedding material used at farms (e.g., hay, straw, sawdust, wood shavings, newsprint, sand, and materials approved pursuant to a beneficial use determination). This revision provides clarity but is not a change to the current regulatory program.

6 NYCRR Section 360-4.2 (a) (4) is added to exempt land application facilities for undigested food and fecal material emanating from New York State-owned or licensed fish hatcheries from the requirements of Subpart 360-4 where the waste is applied at or below agronomic rates. This new exemption allows the Department to dispose of fish hatchery waste in a responsible manner. Under current regulation, these activities require registration but this is not needed since they are small scale and are controlled by Department staff.

6 NYCRR Section 360-4.2 (a) (5) is added to create an exemption for a land application facility or manure storage facility on a Part 750 permitted CAFO that also involves food processing waste or other waste if the waste handling is addressed in a CNMP. The exemption does not apply if the waste contains any human fecal matter or if the amount of non-manure waste placed in the storage facility exceeds 50% of the total volume of waste placed in the storage facility on an annual basis. The term “CNMP” is defined in Section 360-4.2 (a) (5) rather than citing NRCS Code NY312 because Code NY312 might not be relied upon in the future. Section 360-1.3 (b) (4) has been revised to delete the reference to Code NY312 and to add Code NY313 as a reference.

6 NYCRR Subdivision 360-4-2(a) has been revised to effectuate the exemptions described above -- Sections Section 360-4.2 (a) (4) and (5) -- on the effective date of this proposed rulemaking by deregistering those facilities that were previously registered provided that all required annual reports for the facility have been submitted to the department.

6 NYCRR Section 360-4.2 (b) (1) (vii), is revised to clarify the standards that apply to storage facilities. These changes reflect the current manner that these facilities are regulated under Part 360.

6 NYCRR Section 360-5.3 (a) (1) is revised to provide an exemption from Subpart 360-5 for a composting facility that accepts crop residues and to clarify that the exemption from Subpart 360-5 applies to farms.

6 NYCRR Section 360-5.3 (a) (2) is revised to specify that the exemption from Subpart 360-5 applies to either processed or unprocessed yard waste and to indicate that precipitation, surface water, and groundwater that come in contact with yard waste or the resultant compost is not leachate, but must be managed in an acceptable manner to the Department.

6 NYCRR Section 360-5.3 (a) (4) adds an exemption from Subpart 360-5 for certain composting facilities for animal mortalities located on a farm or CAFO and Section 360-5.3 (a) (5) adds an exemption from Subpart 360-5 for AD facilities that accept specified farm waste. Certain activities associated with AD facilities are also exempted, including CAFOs implementing a CNMP for manure, food processing waste, fats, oil, grease, and other wastes without human fecal matter, provided that non-manure waste is less than 50%, by volume, of the waste placed in the AD unit on an annual basis. This section also exempts land application of solids and liquids from AD facilities and other activities relating to dewatered solids.

6 NYCRR Section 360-5.3 (b) (1) (iv) is added to expand the eligibility for registration (rather than requiring a permit) for organic processing facilities for animal mortalities or parts generated from a farm, slaughterhouse, butcher or other generator; and Section 360-5.3 (b) (1) (v) establishes eligibility for registration for composting facilities for dewatered solids from an AD that is subject to registration. Furthermore, Section 360-5.3 (b) has been revised to create eligibility for registration for AD facilities that accept less than 50 tons of waste per day not containing human fecal matter provided that certain operating conditions are met. AD facilities accepting any waste containing human fecal matter or accepting 50 tons or more of waste per day must obtain a permit. Moreover, while land application of solids and liquids generated from an AD facility would require registration, land application that occurs at a Part 750 permitted CAFO is exempt if land application is addressed in a CNMP.

6 NYCRR Section 360-5.5 (b) is revised to exempt AD digestate used on farms from pathogen reduction alternatives under this subdivision. Section 360-5.5 (d) (14) is added to establish specific criteria, including pathogen reduction, for the operation of AD facilities that accept sanitary waste.

6 NYCRR Section 360-5.6 makes certain revisions with respect to source separated organics processing facilities. Specifically, the revisions include permit application requirements, pathogen and vector attraction criteria, pollutant limits and product use for material distributed to the public, and design criteria and operational requirements. Subdivision (f) is added to set forth AD criteria.

The proposed rulemaking modifies the Department of Environmental Conservation’s (Department) existing 6 NYCRR Part 750 regulations to address the regulatory definition of Concentrated Animal Feeding Operations (CAFOs) and State Pollutant Discharge Elimination System (SPDES) permitting requirements for CAFOs. The proposed rulemaking also modifies 6 NYCRR Part 360 to address new solid waste management technologies, such as setting criteria for anaerobic digesters, while eliminating obsolete and duplicative requirements.

Statutory Authority and Legislative Objectives. The Department’s statutory authority to undertake amendments to Part 750 is found in Environmental Conservation Law (ECL) Article 3, Title 3; Article 17, Titles 3, 5, 7, 8; Article 70, Title 1; and the Federal Water Pollution Control Act, 33 USC 1251, et seq. Animal Feeding Operations (AFOs) are lots or facilities where animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility [40 CFR § 122.23 (b)]. CAFOs are primarily defined based upon their animal threshold numbers, and are categorized as either large, medium or small. Under federal law, to meet the definition of a Medium CAFO there must also be a discharge of pollutants into the waters of the United States. Furthermore, based on recent case law and a federal rule change, CAFOs can only be required to obtain SPDES permit coverage under the Clean Water Act (CWA) if there is a discharge into the waters of the United States.

Conversely, the ECL provides the Department with authority to regulate the creation of a point source even if there is no discharge. ECL § 17-0701 (1) (a) states that, “it shall be unlawful for any person, until a written SPDES permit therefore has been granted … to: (a) make or cause to make or use any outlet or point source for the discharge of sewage, industrial waste, or other wastes or the effluent there from, into the waters of this state….” (emphasis added). ECL § 17-0105 (16) defines a CAFO as a point source. Currently, unlike federal law, the Department classifies Medium CAFOs - by permit -based solely upon the animal thresholds set forth in the federal regulations, irrespective of whether there is a discharge. Accordingly, under its authority to regulate the creation of a point source, the Department issues an ECL CAFO SPDES general permit for CAFOs that do not discharge.

The ECL CAFO General Permit requires the development and implementation of a site specific Comprehensive Nutrient Management Plan (CNMP). CNMPs are developed in accordance with conservation practice standards established by the Natural Resources Conservation Service (NRCS) to identify pollutant sources on the farm and recommend BMPs to prevent or minimize water pollution. The CNMP prescribes cyclical manure management techniques through recycling of manure and other organic wastes into soil.

ECL § 1-0101 (3) broadly sets forth the legislative objectives to achieve “social, economic and technological progress for present and future generations” while guaranteeing beneficial use of the environment without risk to health and safety when undertaking regulatory action. This proposed rulemaking clarifies the scope of the Department’s regulatory authority regarding Medium CAFOs by including a definition for Medium CAFOs consistent with federal requirements, while explicitly exempting those AFOs (200-299 mature dairy cows) that do not discharge from needing SPDES general permit coverage. Furthermore, the proposed rules provide flexibility by allowing non-discharging AFOs with 200-299 mature dairy cows to voluntarily seek CAFO SPDES permit coverage and by enabling the Department to designate AFOs as Small CAFOs.

The proposed rulemaking to amend Subparts 360-4 and 360-5 is also consistent with the public policy objectives that the Legislature sought to advance. ECL § 3-0301 (1) (f) provides the Department with the power to “[f]oster and promote sound practices for the use of agricultural land, river valleys, open land, and other areas of unique value.” ECL § 27-0101 also sets forth the intent “to encourage the development of economical projects for the present and future collection, treatment and management of solid and hazardous waste in such a manner as will assure full consideration of all aspects of planning for proper and effective solid and hazardous waste disposal.” Moreover, the State Administrative Procedure Act § 202-a (3) (f) encourages agencies to “minimize the impact” of duplication or overlap between regulatory rules. The Department’s statutory authority to promulgate amendments to Part 360 is found in ECL § 1-0101; Article 3, title 3; Article 27, titles 1, 3, 5, 7, 9, and 13; Article 70, title 1; and Sections 8-0113, 11-0325, 19-0301, 19-0303, 19-0304 and 19-0306.

Part 360 provides regulatory oversight for solid waste management facilities in the State. Under existing regulations, if the waste management on a farm is confined to the farm and involves only waste (manure, crop residues) produced on such farm, the activities are exempt from Part 360. Conversely, if a farm accepts nutrient-based wastes from off-site, such as food processing wastes from yogurt producers, Part 360 criteria apply. Food processing waste may be land applied, placed in a manure lagoon, or added to a farm anaerobic digester to boost gas production.

Under the existing Part 360 regulations, there is overlap between the solid waste requirements and requirements for CAFOs permitted under Part 750. For example, land application of whey obtained from an outside source requires both registration under Part 360 and compliance with the requirements set forth in a SPDES permit. This duplication is unnecessary and burdensome on the affected farms, and provides no additional environmental protection. The primary changes to Part 360 eliminate this overlap by exempting these activities from Part 360. Part 360 is also being revised to add specific criteria for anaerobic digestion (“AD”) facilities. The lack of criteria and applicable standards in the current Part 360 regulations has led to confusion -- primarily in the farming community.

The changes would clarify that Part 360 exempts farm ADs for agricultural waste and includes a tiered structure based on size for the acceptance of off-site waste. This will help promote the development of ADs on farms which will advance manure management and provide an avenue for whey management. Accordingly, pursuant to this rulemaking, 6 NYCRR § § 360-4.2 (a) (5) and 360-5.3(a) (4), (5) would be revised, to create an exemption from registration or permitting for a land application facility, manure storage facility or an AD facility associated with a Part 750 permitted CAFO, if the waste handling is addressed in a CNMP. Similarly, Section 360-5.5 (b) would be revised to exempt AD digestate used on farms from pathogen reduction alternatives.

Other changes to Part 360 would exempt land application facilities for undigested food and fecal material emanating from New York State owned or licensed fish hatcheries from the requirements of Subpart 360-4 where the waste is applied at or below agronomic rates; outline the eligibility for registration for organics processing facilities for animal mortalities or parts generated from a farm; establish eligibility for registration for composting facilities for dewatered solids from an AD facility that is subject to registration and AD facilities that accept less than 50 tons of waste per day that does not contain human fecal matter provided that certain operating conditions are met; and make revisions to application requirements, pathogen and vector attraction criteria, pollutant limits and product use for material distributed to the public, and design criteria and operational requirements with respect to source separate organics processing and AD facilities.

Needs and Benefits. By relieving non-discharging AFOs with 200-299 mature dairy cows from the obligation to obtain SPDES general permit coverage, smaller non-discharging dairy farms would be less restricted in deciding whether to expand their herds. Increased milk production associated with expanded dairy farms is expected to create jobs both in the dairy service sector and the agricultural service industries. The establishment of larger farms and increased yogurt production will dictate the need for additional management infrastructure for manure and whey. Anaerobic digesters located on farms provide a superior method to manage both manure and whey, by providing the yogurt manufacturers with a long term, viable method to recycle this material and by providing the farm with income from tipping fees and increased electricity production. The Part 360 revisions would promote the establishment of anaerobic digesters on farms by exempting some AD facilities from permit requirements, establishing registration criteria for those AD facilities that require registration, and providing a clearer regulatory path for those AD facilities that would still need a Part 360 permit.

Costs. There are no significant costs anticipated for the regulated community. The proposed rulemaking is expected to reduce costs for the regulated community by reducing regulatory overlap.

Local Government Mandates. There are no programs, services, duties or responsibilities imposed by the rule upon any county, city, town, village, school district, fire district or other special district. However, there may be some increased costs to local governments associated with water bodies that are subject to Total Maximum Daily Loads (TMDLs), if the proposed change in the Department’s CAFO permitting program results in a shift of wasteload allocation from CAFOs in general to other types of facilities, such as wastewater treatment plants.

Paperwork. AFOs that are no longer required to obtain an ECL CAFO SPDES permit and that opt to discontinue permit coverage must file a one page Notice of Termination form with the NYSDEC. There are no other reporting requirements required as a result of this rule.

Duplication. The proposed changes to Subpart 750-1 clarify the different regulatory requirements for CAFOs that meet the federal definition of a Medium CAFO as compared to those CAFOs regulated pursuant to the ECL, thereby avoiding any duplication between the federal standards and the State standards. In addition, the proposed changes to Subparts 360-4 and 360-5 address unnecessary overlap between the regulations governing land application in Part 360 and Part 750 permit requirements for CAFOs.

Alternatives. The Department examined the no regulatory action alternative, but this alternative is not as likely to achieve the economic benefits and regulatory efficiencies associated with the rule making. The Department also considered exempting from permit coverage those AFOs from 200-299 without a discharge, but requiring mandatory enrollment in the Agricultural Environmental Management (AEM) Program. Like the no-action alternative, this alternative may also fall short of meeting the rulemaking goals of expanding milk production to foster the yogurt industry in New York because it would essentially substitute one set of mandatory requirements with another. Similarly, the Department rejected a third alternative that would exempt from permit coverage those AFOs from 200-299 without a discharge but require mandatory enrollment in the Department of Agriculture and Markets’ Agricultural Environmental Management (AEM) Program for facilities located in watersheds with an impaired waterbody. This patchwork approach would be difficult to employ. Finally, the Department considered terminating the ECL Permit program and simply administering the CWA permit and its corresponding standards. The Department rejected this alternative because it would not provide the necessary environmental protection, as the potential for a significant environmental impact from a discharge also proportionally grows by the increase in the number of mature dairy cows.

Federal Standards. The proposed rule change is consistent with federal standards because the applicable regulatory provisions and permit program for CAFOs that meet the federal definition and that fall under the CWA remain unchanged by this proposed rulemaking. With respect to the proposed changes to Subparts 360-4 and 360-5, there are no federal regulations for the facilities and activities contained in the proposed rulemaking.

Compliance Schedule. This rule eliminates permitting requirements for current non-discharging Medium CAFOs with 200-299 mature dairy cows, as well as regulatory overlap between Part 750 and Part 360. Therefore, no additional time is needed to achieve compliance with the rule. With respect to the changes to Part 360, the regulated community will be required to comply with these revisions within 60 days from the filing of the rule.

No changes were made to the previously published Regulatory Flexibility Analysis. The changes made to the last published rule do not necessitate revision to the previously published Regulatory Flexibility Analysis.

1. ‘Types and Estimated Numbers of Rural Areas.’ This rule applies to the entire State and impacts all rural areas of the State.

2. ‘Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services.’ The rule will reduce reporting, recordkeeping or other compliance requirements. No professional services will be needed in rural areas to comply with the rule.

3. ‘Costs.’ There are no initial capital costs or annual costs to comply with the rule.

4. ‘Minimizing Adverse Impact.’ The rule is expected to have a positive economic impact on rural areas by encouraging the expansion of Animal Feeding Operations (AFOs) since the threshold at which non-discharging Medium Concentrated Animal Feeding Operations (CAFOs) are required to obtain an ECL SPDES Permit is being increased from 200 to 300 mature dairy cows. As these dairy farms increase the size of their herds, milk production will increase, creating new on farm jobs and increasing employment in the agricultural services industry, dairy processing industry, and food processing service industry. In terms of adverse environmental impacts on rural areas, dairy farms with less than 300 mature dairy cows are still required to fully comply with other environmental laws and regulations. There is an increased risk, however, that removing the requirement of permit coverage for Medium CAFOs with 200-299 mature dairy cows could lead dairy farms already in this size range (and smaller CAFOs expanding to this size) to relax, discontinue, or fail to implement structural and non-structural Best Management Practices. This could result in discharges causing adverse impacts to ground and surface water, including fish and aquatic habitats. Medium CAFOs that are no longer required to maintain permit coverage may still voluntarily maintain permit coverage or voluntarily participate in the Agricultural Environmental Management (AEM) program administered by New York State Department of Agriculture and Markets. In addition, the Department would have the ability to designate an AFO as a Small CAFO thereby subjecting it to the Department’s SPDES permit program.

5. ‘Rural Area Participation.’ The New York State Department of Environmental Conservation (NYSDEC) has complied with SAPA § 202-bb(7) by assuring that public and private interests in rural areas have been given an opportunity to participate in the rule making process. This participation has occurred through publication of the notice of proposed rulemaking in the State Register and through meeting and interaction with a CAFO Work Group composed of individuals from the following organizations:

• New York State Department of Agriculture and Markets

• New York State Department of Health

• Cornell University

• Environmental Advocates of New York

• Citizens Campaign for the Environment

• New York Farm Bureau

• Northeast Dairy Producers Association

• Certified Planners

• CAFO farmers

• NYSDEC central office and regional staff

The NYSDEC also met with the Sierra Club, Riverkeeper, and the National Resource Defense Council with respect to the proposed rulemaking. The Department offered to meet with the New York League of Conservation Voters, but the invitation was not accepted. Furthermore, the NYSDEC accepted public comments to the Notice of Proposed Rulemaking and is providing responses to the comments that were received. A public hearing was also held. Finally, the following documents required by the State Environmental Quality Review Act (SEQRA) were published in the Environmental Notice Bulletin: Environmental Assessment Form, Positive Declaration, Draft Environmental Impact Statement, and Final Environmental Impact Statement.

No changes were made to the previously published Job Impact Statement. The changes made to the last published rule do not necessitate revision to the previously published Job Impact Statement.

The New York State Department of Environmental Conservation (Department or DEC) issued a Notice of Proposed Rulemaking on December 5, 2012, to revise 6 NYCRR Subpart 750-1 to eliminate the requirement that non-discharging Animal Feeding Operations (AFOs) with 200-299 mature dairy cows, milked or dry, obtain ECL CAFO SPDES permit coverage. In addition to revisions to 6 NYCRR Subpart 750-1, the Department published notices for proposed revisions to Subpart 360-4 (Land Application and Associated Storage Facilities) and Subpart 360-5 (Composting and Other Class A Organic Waste Processing Facilities). These revisions establish criteria for anaerobic digestion (AD) facilities, provide exemptions from permit and registration requirements for specified activities at farms and CAFOs, and make other changes to these Subparts to promote sound environmental practices and reduce regulatory overlap. In conjunction with this proposed rulemaking, the Department prepared a draft Environmental Impact Statement (dEIS), and publically noticed its modified ECL CAFO SPDES permit (General Permit No. GP-0-09-001) on December 19, 2012.

The proposed rulemaking and modification to the ECL CAFO SPDES permit is intended to provide regulatory relief to a portion of the dairy community; this action allows them to meet expected demand from the growing yogurt industry, while ensuring that the risks posed to the environment will be manageable. Public comments were accepted from December 5, 2012 until January 22, 2013 for the proposed rulemaking and the dEIS; and from December 19, 2012, until January 21, 2013 for the proposed modification to the ECL CAFO SPDES permit. The Department held four public hearings on January 4, 2013 and heard from 21 speakers at the public hearings, and received approximately 50 additional comments.

Comment: NYSDEC’s proposal to revise 6 NYCRR Part 750 and the general permit to relieve Medium CAFOs of permit requirements that ensure compliance with effluent limitations, and to relieve currently permitted Medium CAFOs from existing effluent limitations, violates the Clean Water Act’s anti-backsliding provision.

Response: The Clean Water Act’s anti-backsliding provision (33 U.S.C. § 1342 [o]) provides that, subject to certain exceptions, a NPDES permit may not be renewed, reissued or modified to contain effluent limitations that are less stringent than the comparable effluent limitations in the previous permit. Under the revised rule making, the Department is not making any change to effluent limitations. Instead, the Department is defining the term “CAFO” for purposes of state law in a manner that remains more stringent than the federal standard. The effect of the rule making is that non-discharging AFOs with 200-299 mature dairy cows are no longer required to maintain ECL CAFO SPDES permit coverage. This group of AFOs already is not required to obtain NPDES CAFO permit coverage under federal law because the Clean Water Act only regulates CAFOs that discharge (Waterkeeper; 33 U.S.C. § 1342 [a] [1]). Thus, the rulemaking merely aligns state law more closely with federal law for this group of non-discharging AFOs. This is accomplished by defining the term “CAFO” in the revised rulemaking (which was previously not defined in Department regulations) to exclude these smaller non-discharging AFOs. Under the ECL, a “concentrated animal feeding operation” is defined to be a “point source” (ECL 17-0105 [16]), but the term “CAFO” is not defined. Therefore, the Department is free to define this term in a manner that is no less stringent than the federal standard. If the Department were to match the federal standard, all non-discharging AFOs, regardless of herd size, would be exempt from permit coverage. Rather than adopt the federal standard, the Department’s rulemaking is narrowly tailored to achieve the important economic benefits described in the EIS while maintaining a higher level of oversight with respect to non-discharging CAFOs with 300 or more cows which produce larger quantities of waste.

Comment: NYSDEC lacks the authority to finalize certain modifications to the general permit that are less protective of water quality than are legally required. The proposed definition of discharge is not consistent with federal or state law. The proposed definition of agricultural stormwater is not consistent with federal law.

Response: The Department’s definition of “discharge” has been revised in the general permit and is consistent with federal and state law. The definition now states that discharge means “any release of any pollutant, including but not limited to manure, litter, process wastewater, food processing waste, digestate, or releases from feed storage areas to waters of the State.”

The Department’s definition of “agricultural stormwater” has also been revised and is consistent with federal law. Agricultural stormwater discharge means a precipitation-related discharge of manure, litter or process wastewater where the manure, litter or process wastewater has been applied in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater, with site specific conservation practices to control runoff, appropriate testing of manure, litter, process wastewater and soil, and adequate documentation and recordkeeping.

Comment: NYSDEC lacks the authority to categorically exempt CAFOs from the SPDES program without assessing whether pollution and/or pollutants will discharge or run into waters of the state from an outlet, a point source or any source which impairs water quality. NYSDEC cannot relieve Medium CAFOs of the obligation to prepare and implement a nutrient management plan and at the same time, presume that such CAFOs will not discharge.

Response: 6 NYCRR § 750-1.2 (a) (21) has been revised to state, in pertinent part, that a “Medium CAFO” is “an AFO that stables or confines. . . 200 to 699 mature dairy cows, whether milked or dry, except that an AFO that stables or confines 200-299 mature dairy cows, whether milked or dry that does not cause a discharge would not be considered a Medium CAFO.” Furthermore, this section provides that AFOs with 200-299 mature dairy cows “may request CAFO SPDES permit coverage and, if permit coverage is granted, the AFO would be considered a Small CAFO throughout permit coverage.” Finally, the rulemaking states that the Department may designate an AFO that is not a Medium or Large CAFO to be a Small CAFO. Therefore, state law remains more stringent than federal law. Federal law exempts all non-discharging AFOs, regardless of herd size, from the requirement to maintain Clean Water Act CAFO SPDES permit coverage. State law, on the other hand, provides that a non-discharging AFO with 300 or more mature dairy cows is considered a “CAFO” that is therefore a “point source” under ECL 17-0105 (16) required to obtain ECL CAFO SPDES permit coverage. Under the rule making, state law now aligns more closely with federal law because a non-discharging AFO with 200-299 mature dairy cows would no longer be required to maintain CAFO SPDES permit coverage unless it designated to be a Small CAFO by the Department. Facilities no longer required to maintain CAFO SPDES permit coverage would still required to comply with all applicable environmental laws and regulations. Therefore, it should not be presumed that these facilities will violate the law based solely upon the nature of their business. Importantly, the Department retains authority to require CAFO SPDES permit coverage for these facilities if: 1) an improper discharge occurs that falls outside the agricultural stormwater discharge exemption or 2) designation as a Small CAFO is deemed appropriate, irrespective of discharge. Finally, the Department retains the authority to evaluate the status of unpermitted AFOs where there is evidence that a discharge, other than an agricultural stormwater discharge, may be occurring (see e.g. ECL 3-0301 [2] [g]).

Comment: NYSDEC’s proposal to deregulate Medium Dairy CAFOs with 200 to 299 cows violates the Clean Water Act’s and New York State’s antidegradation policies and the Clean Water Act’s anti-backsliding provisions and impaired waterbody requirements. The proposed deregulation of CAFOs violates antidegradation protections. The proposed deregulation of CAFOs violates Tier One Antidegradation Protections. The Proposed Deregulation of CAFOs Violates Tier Two Antidegradation Protections.

Response: The Department’s revised rule making does not violate the Clean Water Act’s and New York State’s antidegradation policies. Under the revised rule making, non-discharging dairy AFOs with 200-299 mature dairy cows are not classified as “CAFOs” and therefore are not a “point sources” required to maintain ECL SPDES permit coverage. Excluding these AFOs from the CAFO definition is no less stringent than federal definition pertaining to CAFOs of this size (see 40 CFR 122.23 [b] [6] [i], [ii]) and is consistent with federal law which generally regulates discharges of pollutants (33 U.S.C. § 1342 [a]; Waterkeeper). Antidegradation prevents the degradation of water quality. The rulemaking does not establish less stringent effluent limits, but rather makes a regulatory change that eliminates the ECL SPDES permit requirement based upon: 1) an animal range 200-299 mature dairy cows and 2) the absence of a discharge. The revised rulemaking does not violate Tier One antidegradation protections since it cannot be assumed that existing stream water uses and the level of water quality necessary to protect these uses will be compromised by removing the permit requirement. Likewise, the revised rules do not violate Tier Two antidegradation protections which are intended to preserve high quality waters because removing a permit requirement does not equate to degradation of water quality. As previously explained, the revised rulemaking also does not violate the Clean Water Act’s anti-backsliding provision (33 U.S.C. 1342 [o]).

Comment: NYSDEC’s proposal to deregulate Medium Dairy CAFOs constitutes a substantial revision to its SPDES program requiring EPA review and approval following public notice and comment.

Response: EPA review and approval is not required for changes to our state program. The Department’s rule making only affects DEC’s state permit program and does not affect DEC’s administration of the CWA CAFO general permit. The proposed definition of CAFO remains more stringent than the federal standard. The Summary of Express terms indicates that “the proposed rule making revisions to Subpart 750-1 are not intended to make any changes with respect to the federal definition of a Large, Medium or Small CAFO or to limit, in any way, the scope of federal law. Instead, the proposed Subpart 750-1 changes exempt non-discharging AFOs with 200-299 mature dairy cows from the requirement to obtain an ECL CAFO SPDES permit unless designated, while clarifying that although ECL CAFO SPDES permit coverage for these facilities would be discontinued, state law is still more stringent than federal law.” To the extent that referencing federal laws and regulations implicates the Department’s federal SPDES program, the rulemaking has been revised to remove the revision to 6 NYCRR § 750-1.24 (c).

In Waterkeeper Alliance v. EPA, 2005 U.S. App. LEXIS 6533 (2005), the Second Circuit Court of Appeals held that EPA is only authorized to regulate CAFOs that discharge. In response to this decision, EPA changed its federal rules and no longer requires CAFOs that “propose to discharge” to apply for a NPDES permit. Furthermore, federal rules have removed language allowing CAFOs the option to voluntarily certify that they do not discharge. The Department’s rulemaking only impacts AFOs with 200-299 mature dairy cows that do not discharge. Therefore, the proposed rule making does not affect implementation of the federal permit program. Indeed, the Department administers two types of general permits: 1) the Clean Water Act CAFO general permit for CAFOs that discharge and 2) the ECL CAFO permit for CAFOs that do not discharge. Thus, the proposed rule making is not a “program revision” under 40 CFR 123.62 because it only applies to non-discharging facilities that are beyond the scope of the Clean Water Act. Similarly, the Department need not obtain prior EPA approval for modifications to its ECL CAFO SPDES general permit because this permit merely implements ECL requirements. Indeed, the ECL CAFO SPDES general permit specifically relies upon Article 17, Title 7 of the ECL for authority to require coverage. Title 7, unlike Title 8, of Article 17 is based on State authority not Federal.